Laws regarding Vested Properties in Bangladesh: Key Provisions and Concise Commentary-Issue-I

Dear Brothers and Sisters,

Assalamu A’laikum Wa Rahmatullah. This note is basically the first Issue of ‘Laws Regarding Vested Property’ where I will be dealing with the key provisions of the relevant statutes that concern the list of vested properties and those who got temporary lease of the vested properties from the Government. There are debates going on about the purpose and outcome of the recently passed ‘Vested Property Release (Amendment) Act 2011 (passed on 28th November 2011). In our country we have enormous lands which have been possessed as vested properties and understanding the laws will be of greater importance. However, for the time being we will focus on the substance of the relevant laws and I welcome every comment and question on this issue.


Relevant Statutes:

1) Vested Property Release Act 2001
2) Vested Property Return (Amendment) Act 2002
3) Vested Property Return (Amendment) Act 2011
4) Vested Property Release Rules 2012

Recent Updates on Relevant Statutes:

The parliament on 14th June, 2012 has passed a bill ‘Vested Property Release (Amendment) Bill 2012. Slight but significant changes are brought with this bill. To have a summary please visit:

http://www.thefinancialexpress-bd.com/more.php?news_id=133012&date=2012-06-15


Key Provisions and Concise Commentary

-List of vested property has to be made [section 9(1) and (2) of 2001 Act amended by 4kha of 2011 Act].

-Schedule KA/KA List:
• Assets in the possession of government.

• Meaning, the assets mentioned under subsections NIYO(ঞ) and TA(ট) and TO (ত) of section 2 of 2001 act (please note that the subsection TO was added later on by section 2 GA of 2011 Act).
-Schedule KHA/KHA List:
• Assets under the authority of common people.
• Meaning, vested assets but has not been included within schedule KA.
– Both lists have to be published through the Government Gazette [section 9(1) of 2001 Act as amended by section 4KHA of 2011 Act]

- If not within the gazette of list KA or KHA, then it is not vested property [section 9(6) of 2001 Act amended by 4GA of 2011 Act].

-If if no claim is made for the property after it has been entered into the list of returnable property or a claim is dismissed then the Government will become the owner of the property who can sale or dispose with the property in any way [section 26 (1) of 2001 Act amended by section 12 of 2011 Act].

vested property

vested property

- For Ka Listed Property: If the property is Ka listed then the person who had the property in lease, before the sale or disposal of the property, will get priority to purchase or take permanent lease from the Government [For KA listed property (section 27(1) of 2001 Act as amended by section 13 of 2011 Act)]

- For Kha Listed Property: If KHA listed property then the person who had the property in lease before the sell will get the priority provided he give damages for the lease he enjoyed and no co-sharer will get priority before him [27(2) of 2001Act as amended by section 13 of 2011 Act]

- The temporary lessee will loose his right soon the property is returned to the owner in compliance of the Act (section 14 of 2001 Act amended by section 3 of 2002 Act)

-Gazette containing KA list was published April 15 2012 KA list [17 days before of the deadline to publish gazette if we count 150 days (section 9(1) of 2001 Act amended by section 4Kha of 2011 Act) from 28th November 2011, the date of passing of the act]. However, there are differences in opinion whether the Gazette was published on that date or not as there is evidence that it was published on 6th June this year.

-Please note that the recent bill passed in Parliament on 14th June 2012 [Vested Property Return (Amendment) Bill 2012], has extended the deadline to 300 days from 150 days, but this will not affect KA list as it has been passed. The KHA list is thus getting extra time with this bill However, there are differences in opinion whether the Gazette was published on that date or not as there is evidence that it was published on 6th June this year.

-As of 19th June 2012, KA list has been published but KHA is awaiting.

-Please note that those who have taken their property on temporary lease from Government will surely have the names of the properties within KA list as Government has the possession/control of the properties under KA list. So, consulting the KA list to find their properties is advised.

See the next issue for procedures to be followed for i) releasing or ii) returning the vested property to the rightful owner and other necessary provisions and case laws.

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Save The Rohingas!

In the Name of ALLAH, The Entirely Merciful, The Especially Merciful.

Genocide on Rohingya Muslims at Myanmar

Genocide on Rohingya Muslims at Myanmar

Dear Brothers and Sisters, Assalamu A’laikum wa Rahmatullahi wa Baraqatuh. The pressing need of raising voice and start taking immediate actions for our Brothers and Sisters in the Rakhaine state of Myanmar named rohinga has become the single most important need for now. One of our sisters named Uzma Shukrana narrated her view about the problem in this way:
“knw that we shoud be more sympathetic,but should not the burden lie on burma???as far as i know the so called iron lady suchi is crusing in europe while her countrymen are suffering.Bangladesh aito..is already burdened with overpopulation…and rohingas are crime prone, so yes i feel for them but i have millions of my fellow poor countrymen to worry about. the wealthy muslim states like saudi arab should come forward”.
So I answered in the following. Please read the following for it will, InshaALLAH, reveal some truth/reality about the disasters happening there.
@ Uzma Shukrana and others, Assalamu A’laikum Wa Rahmatullah. Indeed, it is true that we are overpopulated but before reaching any conclusion we need to workout where the balance lies. Let alone the concept of ISLAM, if we consider the world history of refugees, it becomes apparent to us that this concept is a concept of antiquity tracing back to the ancient Greek and Egyptians. The world history reveals that our forefathers used to be nomads, civilization developed through migration, contact and imitation. Same is true for our Bangladesh as well. At our inception, we had our refugee camps in shared border areas with India. Were not India over populated then? Over the passage of time during the 20th century a lot of refugee laws developed. UN has one international convention of 1951 and declaration of 1974. If we say that we love those who are oppressed then why not at least allow them in refugee camps and deal with customary, local and international legal instruments already in place. This problem is not one of unprecedented nature for us to get frightened so much. Please note that, “Members of Ethnic Minorities Are No More Prone to Commit Criminal Acts Than Other Sections of the Population, but Are over Represented in Crime Statistics” (read the full article from http://www.oppapers.com/essays/Members-Ethnic-MiNorities-No-More-Prone/147217). Therefore, we should not blindly say by reading newspapers or media coverage that they are crime prone. Now, regarding the coverage about the problem in so many national newspapers and international media, I can just say what the famous International Foreign Correspondent/Journalist Robert Fisk said. Fisk said in his speech headed ‘the age of the warrior’ in Seattle, US in 2008 that the problem with journalists that they present their discourse to report about a problem in such a manner that people do not get the real picture. So, we can’t simply mention that it is a ‘rohinga-burma dispute’. Using the word ‘dispute’ puts a veil on the real atrocities happening there against the rohinga community. And, this is why we need to take resort to religion. You know why religion? Because in order to dig into the problem we must know ‘WHY THIS HAPPENED’. Those reporting for the powerful must leave their osmotic parasitic relationship with power. Yes, targeted rohingas are Muslims and around the world, it is Muslims who have not lost their faith in Almighty ALLAH and therefore, are facing trials than any other nations. Same scenario can be found in Palestine, Syria, Egypt, Uzbekistan, Afghanistan, Pakistan, Iraq and so on and on. It is muslims who are suffering most at the hand of tyrants. Saudi Arabia being a muslim and wealthy country should come forward which I agree, but it cannot outweigh the importance of Bangladesh’s reaching it hands out to help rohingas being the only neighbouring muslim land. ALLAH says in the Glorious Qur’aan: “And what is wrong with you that you strive not in the Cause of ALLAH, and for those weak, illtreated and oppressed among men, women, and children, whose cry is: “Our Lord! Rescue us from this town whose people are oppressors; and raise for us from You one who will protect, and raise for us from You one who will help.” Those who believe, fight in the Cause of ALLAH, and those who disbelieve, fight in the cause of Taghut (Satan, etc.). So strive you against the friends of Shaitan (Satan); Ever feeble indeed is the plot of Shaitan (Satan)” [Al Qur'aan. Surah: Verse 75-76]. Are not we going to be held responsible for not rescuing our brothers and sisters on the day of Judgment? Are not our excuses like pointing at wealthy nations flimsy? If we do not support our muslim brothers and sisters then remember ALLAH is sufficient for them. ALLAH says in the Glorious Qur’aan: “But if they turn away, say (O Muhammad SAW): “ALLAH is sufficient for me. Lâ ilâha illa Huwa (none has the right to be worshipped but He), in Him I put my trust and He is the Lord of the Mighty Throne.” (Surah: At-Taubah. Verse: 129).

Genocide

Genocide


We also do not disagree that we have our poor fellow countrymen to think about, but the Islamic doctrine of Istihsaan (legal precedence) is not applicable here for both the problems are concurrent and bear significance. Supporting our Muslim brothers who are our neighbours cannot be sidelined by arguing for our brothers from our country and vice versa. ALLAH says in the Amazing Qur’aan: “And verily this Ummah of yours is One Ummah and I am your Lord and Cherisher: therefore fear Me (and no other).” [Surah: Al-Mu'minun, Verse: 52]. Regarding, Aung San Suu Kyi, my perception is that the Military Junta is about to transfer the power to Suci or her allies and the west being the main powerhouse behind this. Neither the Junta nor Suu Kyi so far want to show the west that crimes are happening in the rakhaine state overwhelmed by rohingas. Where many ethnic groups are recognised by myanmar in this power transfer, still the rohingas remain non recognised. A media blackout is happening or as I have stated above, improper discourse are taking place. May ALLAH help our brothers and sisters and make the best way out for them. May ALLAH forgive us and grant us Victory. May ALL of us be among the inhabitants of paradise. Ameen.

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Laws of Bangladesh: Part 1-‘Artha Rin Adalat Ain, 2003. Issue I- Scope and Procedures’

Dear Brothers and Sisters,
Assalamu A’laikum Wa Rahmatullahi Wa Baraqatuh. This series known as ‘Laws of Bangladesh’ is introduced in order to enrich ourselves with the knowledge regarding laws of Bangladesh. I will try to put important information regarding different statutes or case laws containing procedural and legal provisions and commentaries. Sometimes, comparative analogy will be drawn in order to find out the distinctions and/or solutions. Please bear in mind that this is an initiative taken for the benefit of all of us who can be lawyers, law students or totally naïve about law. So, don’t worry, join and share your views.
This part 1 is on ‘Artha Rin Adalat 2003’ and this issue I is about the scope of the statute and procedures to be followed for filing cases under Artha Rin Adalat Ain 2003. I give special thanks to my student ‘Hasan Ali Ruman’ who inspired me in writing this note. Thank you Hasan Ali. Jazak ALLAHU Khair.


Artha Rin Adalat Ain (ARAA) 2003

Matters covered by this statute, its scope and jurisdiction of Artha Rin Adalat:
• Matters regarding recovery of loans by financial institutions are covered by this statute. This is apparent from the preamble of this statute given at the very beginning of this Act prior to section 1 and also from the section 5. Please note that, these matters are regarded as matters of civil nature (section 11(5) of ARAA).
• Irrespective of Public Demand Recovery Act (PDRA) 1913, if the loan is recoverable under ARAA then it has to be recovered using the Artha Rin Adalat no matter whether this loan is considered as ‘Public/Government Loan’ [section 5(5) of ARAA].
• However, cases involving claims by Bangladesh Krishi Bank and Bangladesh Krishi Unnoyon Bank and other state-owned financial institutions not exceeding the amount of taka 5 lacs can be filed as certificate case using the PDRA 1913 instead of filing in Artha Rin Adalat [section 5(5) of ARAA].
• If there are special provisions for recovering loan by financial institutions established by special law, then the ARAA provisions will be counted as additional to those provisions. However, if that financial provision files a case in Artha Rin Adalat for recovering loans, then the ARAA will be applicable [section 5(6) of ARAA]
• Loans given to the Government by the following institutions [section 2Ka (12-17)] are not recoverable by the Artha Rin Adalat:
 International Finance Corporation
 Commonwealth Development Corporation
 Islamic Development Bank
 Asian Development Bank
 International Bank for Reconstruction and Development
 International Development Association
• However, appropriation of money by the officers or employees of a financial institution can not be entertained with this act (section 18(1) of ARAA).
• Mortgage suit for sale or foreclosure of immovable property in pursuant to section 67 of The Transfer of Property Act 1882 and Order XXXIV of CPC has to be filed in the Artha Rin Adalat and the procedures laid down in CPC and ARAA have to followed in combination, so far as it is possible [section 5(2) of ARAA]
• The loan-receiver cannot file a case against the financial institutions under this statute. Neither he can counterclaim or put any claim of set off against the financial institution while filing the written statement (section 18(2) of ARAA).
• Any case pending in any other court by the loan receiver being plaintiff cannot be heard analogously with the case filed by the financial institution against that loan receiver in Artha Rin Adalat and vice versa. Neither it is possible to stay the case under Artha Rin Adalat on that ground (section 18(3) of ARAA).

Relevant court: All the matters under this statute, as long as it is regarding recovery of loans by financial institutions, has to be entertained by Artha Rin Adalat of the relevant district. The judge of the Artha Rin Adalat is a Joint District Judge (Section 4 & 5)
Procedures to be followed for filing and running cases under this statute: It must be borne in mind that as the matters covered by this statute are of civil nature, therefore, the Code of Civil Procedure (CPC) is the prime code that has to be followed regarding procedural issues. If this is so, then the relevant steps for a civil case/suit under CPC are to be complied with for cases under Artha Rin Adalat Ain 2003. The normal steps for a civil suit that are to be followed for cases under Artha Rin Adalat Ain 2003 are:
Proceeding Stage:
I) Issue of Plaint/ Institution of Suit:
2) Issue of Summons/Process:
3) Service of Summons:
4) Return of summons and filing of written statements:
5) First Hearing and Court’s Examination of the Parties:
6) Section 30 steps:
7) Framing Issues:
8) Settling a date for hearing:
These days, the abovementioned stages 5, 6 & 8 are not the norms. Normally on the day of framing issues the court fix a date for final or peremptory hearing and then the trial stage begins without the need for fixing a separate date for settling a date for hearing.
Trial Stage:
1) Peremptory Hearing:
a) Opening of the case
b) Examination in Chief
c) Cross-examination
d) Re-Examination
2) Arguments
Post-Trial Stage:
1) Judgement
2) Decree


Now, we have to see that what additions, differences or explanations the Artha Rin Adalat Ain (ARAA) 2003 has made with the procedures laid down in CPC. It has to be seen because if there is anything contradictory in the ARAA 2003 then the provisions of ARAA 2003 will have to be followed (section 6). Now, all the ARAA says about procedures are laid down in fourth chapter within section 6-20.
The additions or differences or explanation regarding procedures are:

Regarding Proceeding Stage:
1) Issue of Plaint:
• If any property is given in mortgage or pledge or lien then before filing the plaint the financial institution has to sell the property and adjust the loan or has to fail after trying to sell the property. Please note that the financial institution has to have the lawful right or been given the right to sell the property [section 12 (1) and (3) of ARAA]. If the plaint has already been filed without the property being sold, then the plaintiff has to sell the property and adjust the loan and inform the court in written form [12(2) of ARAA].
• Any third party mortgagors or third party guarantors involved with the loan, if there is any, are to be made as opposite parties/defendants of the plaint along with the principal debtor (section 6(5) of ARAA).
• The contents that are to be included within the plaint and the relevant formalities to be followed are mentioned in section 8 of the ARAA.
• ARAA 2003 says that the plaint should be supported by Affidavit and Ad Valorem court fees has to be paid with the plaint (section 6(2) of ARAA).
• However, these are mentioned concisely in rule 3 order XIX of CPC and rule 1 Para (2) of Order XLVIII.
• This plaint supported by affidavit will be counted as substantial evidence and the court, in case of default or summary judgment, can give order or judgment by solely relying on the plaint without examining any witness (section 6(4) of ARAA)
2, 3 and 4) Issue, Service and Return of Summons:
• Explanation regarding Issue, Service and Return of summons is given in section 7 of ARAA.
• For example, summon has to be personally served and returned within 15 of days of issue. If the summon returns without being served then within the next 15 days from the date of return, the court, if considers just, will serve the summon by advertising it in a popular national and a local newspaper, if there is any. In this way the court can get rid of the requirement of serving personally as in many cases the address of the defendant is wrong or something unexpected occurs [section 7(2) of ARAA].
4) Filing of written statement:
• The contents to be included within the written statement and the relevant formalities to be followed are mentioned in section 8 of the ARAA.
• The written statement has to be submitted within 40 days after the defendant first appears in the court in order to answer the summon (section 11(1) of ARAA).
• ARAA 2003 says that the plaint should be supported by Affidavit and Ad Valorem court fees has to be paid with the plaint (section 6(3) of ARAA).
• However, these too are mentioned concisely in rule 3 order XIX of CPC and rule 1 para (2) of Order XLVIII.
• This written statement supported by affidavit will be counted as substantial evidence and the court, in case of default or summary judgment, can give order or judgment by solely relying on the written statement without examining any witness (section 6(4) of ARAA)
• If the plaintiff wants to give an additional written statement in reply to the written statement of the defendant then he has to file it within 15 days of the filing of the written statement by the defendant (section 11 of ARAA)
7) Framing issues:
• If the parties are not at issue on any question of law or fact, irrespective of their presence or absence at court, the court may at once pronounce judgment or order after the submission of written statement or at any stage of the trial if it appears to the court upon scrutinising the plaint and written statement (Section 13(1), (2) and (3) of ARAA). In CPC the rules 1 and 2 of Order XV are almost of same effect.
• If the defendant admits the statement of the plaint whether by written statement or any other way, the court can at once pronounce judgment or order by ignoring other pending issues awaiting to be disposed of.
8) Settling a date for hearing:
• The date settled for hearing can be stayed only once upon application of any of the parties (section 14(1) of ARAA)
• However if a party applies for staying the settled date again by paying an amount (between 1000-3000 Tk) before a due date, the court can again allow to stay the settled date for hearing (section 14(2) of ARAA)

Regarding Trial Stage:
1) Peremptory or final hearing:
• If the defendant is absent on any date of final hearing the court can ex parte dispose of the case by giving ex parte decree [section 19(1) of ARAA].
• In this case, the defendant can vacate the ex parte decree by applying within 30 days of the date of passing of the decree or the date of his getting notified about the decree by depositing 10% of the decreed amount in the court or in the financial institution [section 19(2) and (3) of ARAA].
• If the plaintiff is absent on any date or fails for any reason, the court cannot strike out the plaint. In this case the court has to scrutinise the papers and dispose of the matter accordingly [19(6) of ARAA]
2) Arguments:
• It is not obligatory for the judges to hear oral arguments before pronouncing judgment (section 15(1) of ARAA).
• Within five days of the completion of peremptory hearing (i.e. after examining all the witnesses), the parties or any of them can submit written arguments to the court after notifying the court in writing and supplying copies of the written arguments to all other parties. There is no option to answer the arguments in written form (section 15(2) of ARAA).
• The court can order the parties to give oral arguments for/against the written arguments if it considers necessary (section 15(3) of ARAA).

Regarding Post-Trial Stage:
1, 2) Judgment and Decree:
• Within 10 days of completion of peremptory hearing the court has to pronounce judgment. However, if the court admits written or oral arguments then it has to pronounce judgment within 10 days of completion of written or oral arguments.
• The decree given by court is to be counted as final decree in all respect except in case of mortgage suit for foreclosure of immovable property under section 5(2). In this case, the decree given by the court is to be counted as preliminary decree [section 5(3) of ARAA]. This decree will become a final decree after the auction sale of the immovable property [section 5(4) of ARAA].

Some important procedural provisions:
1) Regarding selling the properties under mortgage, lien or pledge etc:
• We have already seen above under the heading of ‘issue of plaint’ that selling the properties under mortgage or hypothecation [12 (2)] or lien or pledge [12(1)] is a pre-condition for filing a plaint. Now, if getting the possession of the property by the financial institution or transferring the possession to the purchaser is necessary for complying with those sections then the defendant will have to transfer the possession to the financial institution or to the purchaser. The financial institution has to request the defendant in written form for the transfer. If the defendant rejects the request then the financial institution will have to apply to the district magistrate having the territorial jurisdiction to recover the possession and transfer the same to it or to the purchaser [section 12(5) and (5Ka)]
• Auction sale:
 Where a financial institution sells a property under mortgage or hypothecation in compliance with section 12(3) of ARAA, then it has to follow the procedure of auction sale, so far as it is possible, as written within section 33(1) to (3) of ARAA. Please note that, these procedures of auction sale are normally applied during the execution of decree (জারী).
• The court by its own initiative or upon application of the defendant, if the financial institution has not sold the property yet, has to adjust the loan with the amount of the property give the decree accordingly. Please note that, the court will not sell the property, it will just adjust the loan with the value of the property. It will know the value from the financial institution’s estimate or from sub-registrar [section 12(6) of ARAA].
• In this regard, if the financial institution wants to get the ownership of the property then upon his written application to the court, the ownership of the property will be transferred to the financial institution through a court’s certificate [section 12(7) and 33(7)]
• If the property under mortgage etc. is being sold to a purchaser then this will create a legal title in favour of the purchaser. Nothing can challenge the purchase irrespective of whatever is written in other Acts [section 12(8) of ARAA]. However, if there is any irregularity in the sale, then the defendant can claim damages from the financial institution [section 12(8) of ARAA].

2) Exclusivity of order given by Artha Rin Adalat:
• No question about the judgment, decree, order or proceedings of Artha Rin Adalat can be questioned in any court or authority without observing the provisions of ARAA. Nor any remedy can be sought in any court without ignoring the provisions of ARAA (section 20 ARAA).

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Civil Practice: Part 1 Issue I: The Stages of Civil Litigation – The Proceeding Stage and relevant ADR (Alternate Dispute Resolution)

Dear Brothers and Sisters,
Assalamu A’laikum Wa Rahmatullahi Wa Baraqatuh. This series known as ‘Civil Practice’ is introduced in order to enrich ourselves with the knowledge of Laws regarding ‘Civil Practice’. I will try to put important information regarding Civil Practice in Bangladesh containing procedural and legal provisions and commentaries. Sometimes, comparative analogy will be drawn in order to find out the distinctions and/or solutions. Please bear in mind that this is an initiative taken for the benefit of all of us who can be lawyers, law students or totally naïve about law. So, don’t worry, join and share your views.

The Stages of Civil Litigation – The Proceeding Stage

I) Issue of Plaint/ Institution of Suit: Under section 26 of CPC a suit gets initiated through the presentation of a plaint by the plaintiff. In filing the plaint territorial and pecuniary jurisdiction of the relevant court has to be considered. In this case the lowest grade of a civil court competent to try a suit has to be the court where the suit will be instituted. The suit will be registered by the court officer/sherestadar

2) Issue of Summons/Process: After institution of the suit the court will issue summons to the defendant for him to appear and answer the claim. Section 27 and Order V of the CPC governs this area.

3) Service of Summons: The court summons together with a copy of the plaint of the plaintiff is served to the defendant by the court officer using registered post (as often it is the case). Order V of the CPC governs this area.

4) Return of summons and filing of written statements: The defendant has to appear in the court on the day fixed in the summons. On that day, he can either file his written statement or ask time to file the same in future but this has to be either on or before the day of first hearing (Order VIII Rule 1). There is a possibility of dismissal of the suit if the plaintiff fails to pay the amount required for court fee or postal charges for service of summons (Order IX Rule 2)

5) First Hearing and Court’s Examination of the Parties: On this day the court will examine the pleading of the parties by asking the parties or their pleaders about their approval or denial of the allegations made in the plaint or written statement. The admission/approval or denial will be recorded by the Court (Order X Rule 1).

6) Section 30 steps: The Court gives orders for delivery and answering of interrogatories and/or discovery, inspection, production, return of documents etc. that can be material evidence and/or admission of documents and facts using this section. Order XI, XII and XIII govern this area.

7) Framing Issues: The court with or without the assistance of the advocates at this state will frame the issues. Issue in this context means the material facts or laws regarding which the parties are at variance. The court can adjourn the framing of issues for a future date if it appears to the court that inspection or examination of documents or person not present in the court is required in order to frame the issues (Order XIV). There is no framing issues in case of small causes suit.

8) Settling a date for hearing: Upon framing the issues, the court can fix a date for settling the date of final or peremptory hearing (i.e. trial including examination in chief (XIC) and cross examination (XX)). On this date the parties file their list of witnesses and apply for commission required for examination of any witnesses. The Court also fixes a date for final or peremptory hearing this day.

These days, the abovementioned stages 5, 6 & 8 are not the norms. Normally on the day of framing issues the court fix a date for final or peremptory hearing and then the trial stage begins without the need for fixing a separate date for settling a date for hearing.

Submission at the Courtroom

Submission at the Courtroom


The Stages of Civil Litigation – The relevant ADR (Alternate Dispute Resolution)

Under The Code of Civil Procedure (CPC):

Mandatory Mediation Process: No mandatory mediation process during the pre-trial stage except in case of family matters under the Muslim Family Law Ordinance 1961 and section 10 of the Family Courts Ordinance, 1985.

Optional Mediation Process: Under section 89A of Code of Civil Procedure (CPC): The court may mediate except in the case of a suit under the Artha Ain 1990, after the filing of the written statement, in order to settle the dispute of the suit itself or refer the dispute to engaged pleaders of the parties or in case of no pleader, refer to a mediator from the panel prepared by District Judge under ss 10 of s89A.

Optional Arbitration Process: Under section 89B of CPC: Upon application of the parties to settle the dispute through arbitration, at any stage of the proceeding, the Court can allow the withdrawal of the suit and then it will be settled in accordance with Salish Ain 2001.

Under the Artha Rin Adalat Ain 2003:

Optional Settlement Process: Under section 21(1) of Artha Rin Adalat Ain 2003 the court, if considers necessary, can call for a settlement conference after the filing of written statement. In this case the Court will be the chairman of the settlement conference [Section 21(2) of Artha Rin Adalat Ain 2003]

Optional Mediation Process: Under section 22(1) of Artha Rin Adalat Ain 2003 the court, if no action for settlement is taken under section 21, after the filing of written statement can send the matters to the parties or their advocates for mediation and meanwhile the proceedings will be stopped. However, if the parties apply to the court for mediation, then it becomes obligatory for the court to send the matter for mediation.

-End of Part 1 Issue 1

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Criminal Practice: Part 1 Issue I: The Stages of a Criminal Case: Pre-Proceeding Stage

Dear Brothers and Sisters,
Assalamu A’laikum Wa Rahmatullahi Wa Baraqatuh. This series known as ‘Criminal Practice’ is introduced in order to enrich ourselves with the knowledge of Laws regarding ‘Criminal Practice’. I will try to put important information regarding Criminal Practice in Bangladesh containing procedural and legal provisions and commentaries. Sometimes, comparative analogy will be drawn in order to find out the distinctions and/or solutions. Please bear in mind that this is an initiative taken for the benefit of all of us who can be lawyers, law students or totally naïve about law. So, don’t worry, join and share your views.

The Stages of a Criminal Case: Pre-Proceeding Stage
There are four steps in pre-proceeding stage:
1. First step: Initiation of a criminal case
2. Second step: Reporting to the Magistrate
3. Third step: Investigation
4. Fourth step: Final report/ Charge sheet

1. First step: Initiation of a criminal case

A criminal case can be initiated in one of the two ways:
I. Through filing a First Information Report (FIR) in case of cognizable (where arrest without warrant is permitted) offence. See the sample FIR below.
II. Complaint to Magistrate in case of cognizable and non-cognizable (where arrest without warrant is not permitted) offence.
Schedule II of CRPC (Code of Criminal Procedure) details the difference between cognizable and non-cognizable offence.

A Sample F I R

A Sample F I R


I. Through filing a First Information Report (FIR) in case of cognizable offence
If an officer-in-charge receives information about any cognizable offence from any of the below four sources then he must record the same and this written record will be treated as FIR and a FIR number or PS (police station) case number will be given. The sources are:

a) From an individual informant [section 154 of Code of Criminal Procedure (CRPC)]
b) From any other source such as phone call or by the police themselves or hearsay (section 157 of CRPC)
c) From a magistrate who sends an offence already taken in cognizance (cognizable or non-cognizable) to the police station for investigation and report [section 155(3) and 156(3) and Regulation 245 of Bengal Police Regulation (PRB) 1943]
d) From a magistrate who sends a complaint upon acceptance to a police station for inquiry (section 200 & 202 of CRPC)

II. Complaint to Magistrate in case of cognizable and non-cognizable offence
If a magistrate receives information about an offence from any of the below two sources then, upon examining the complainant on oath, he can either:
a) take cognizance [in this case the complaint is registered as CR (complaint registered) case]
or
b) dismiss
or
c) order inquiry or investigation of the matter [in this case complaint is entered as a petition simply known as CRP (Complaint Registered Petition)]

The sources for the magistrate to receive information in this case are:
a) From a police officer who forwards an informant to the magistrate in a non-cognizable offence after making a general diary (GD) (section 155 and 200 of CRPC)
b) From an individual who complains to the magistrate about the commission of a non-cognizable offence (section 200 of CRPC)

Criminal Case!

Criminal Case!

2. Second step: Reporting to the Magistrate
In case of FIR: The original copy of the FIR has to be sent to the Magistrate through a police officer within 24 hours (section 157 of CRPC and regulation 246 of PRB 1943 (Volume-1). Upon receiving the FIR the case will be registered as a GR case.
In case of CR case: After a case is registered as CR case then no further reporting to the magistrate as the case has been taken into cognizance.
In case of CRP case: After a case is registered as CRP case, then a report has to be given to the magistrate upon inquiry or investigation (see the third stage below). The Magistrate then can take the offence in cognizance if he sees reason for proceeding and the CRP case then turns to CR case.

3. Third Step: Investigation

Please note that, in case of a CR case there is no third stage (i.e. investigation). Only in case of FIR or CRP case there is investigation by the Police. However, this has to be understood by way of cognizable and non-cognizable offence.
In case of cognizable offence: The police can investigate without the order of a Magistrate (section 156 CRPC)
In case of non-cognizable offence: Order of a Magistrate is required (section 155 CRPC)
Please note the followings:
a) Investigation under CRPC: It has to be conducted by an IO (investigation officer) or anyone other than a Magistrate who has been authorised by a Magistrate for this purpose (section 173 CRPC).
b) Investigation under Special Powers Act (SPA) 1974: Only an officer not below the rank of sub-inspector (SI) can investigate (section 27 of SPA). He will report to the special tribunal which is the only body competent for this purpose.
c) Maintaining case diary during investigation is mandatory for the investigating officer.
d) Any person who is arrested during investigation has to be produced before a Magistrate if investigation cannot be completed within 24 hours of arrest. This is known as ‘forwarding’. In this case police may seek remand for the arrested person for more interrogation.

4. Fourth Step: Final Report/ Charge Sheet

For understanding this stage, please note the following:
a) Final Report: Upon investigation if no case of the offence is found then the police gives final report. It essentially releases an accused from custody or discharge him on bail as no case of the offence allegedly committed has been found against him (section 173 CPRC, Regulations 275-277 of PRB). Please note the following:
• The magistrate can accept or reject the report.
• If he rejects the report he may order further investigation by the police (no new PS number is given). He can also order inquiry and examine the complainant and take the offence in cognizance.
• If he accepts the report then the informant being aggrieved can file a naraji petition. Here the Magistrate upon examining the petitioner/complainant can issue process upon the accused (i.e. proceeding of a case will start then) or direct inquiry by any other Magistrate [Syed Azharul Kabir v Syed Ehsan Kabir, 4 MLR (AD) 343]
b) Charge Sheet: Upon investigation if any case of the offence is found then the police gives charge sheet by mentioning the name of those who have been formally charged for the offence. It essentially recommends for prosecuting the offender (Regulations 272-274 of PRB).
c) The final report or charge sheet has to be forwarded to the Magistrate empowered to take cognizance of the offence (section 173 of CRPC).

-End of Part 1 Issue I

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Ruthless Leaders: ‘Their Oppression and Death’

Dear Brothers and Sisters,

Assalamu A’laikum Wa Rahmatullahi Wa Baraqatuh. History teaches us a lot. Indeed, it is rewarding for our conscious and consequently for our life in this earth and hereafter if we learn about the ‘Ruthless leaders’, ‘their atrocities/brutalities’ and ‘death’. I have put a list below about some notorious ruthless brutal leaders in history for you to learn about them and their consequence. Please note that this list is neither exclusive nor arranged according to hierarchy of brutality. Leaders like Firaun, Nimrud, Abu Jahl, Abu Lahb, Musailamah Kazzab, Abdullah Ibn Ubai are surely ferocious and their death too is exemplary for us.

Bou Azizi burned himself due to oppression of the rulers of Tunisia

Bou Azizi burned himself due to oppression of the rulers of Tunisia

Please read below and compare the present day leaders with them and think about the consequence:

10. Attila the Hun
Identity:
The ruler of the Huns from 434 until his death in 453.

Attila the Hun

Attila the Hun


Brutality/Violence/Savagery/Ferocity: He invaded Western Europe and did not hesitate to execute anyone who came in his way. His most famous method of torture was tearing the victims apart by their limbs.

Death: Killed by wife.


9. Emperor Hirohito of Japan
Identity:
He was the 124th Emperor of Japan according to the traditional order, reigning from December 25, 1926, until his death in 1989.

emperor hirohito

emperor hirohito


Brutality/Violence/Savagery/Ferocity: When Japanese involvement in World War II is mentioned, the first thing that comes to our mind is the ‘Rape of Nanking’ a name given to a six week massacre of Chinese civilians by Japanese troops. This six week carnage claimed around 300,000 lives. 20,000 women from age 8 to 70 were raped before being put to death. Pregnant women weren’t even spared.

Death: Duodenal Cancer and continuous internal bleeding.

8. Saddam Hussein
Identity:
The fifth President of Iraq, serving in this capacity from 16 July 1979 until 9 April 2003.

Saddam Hussein

Saddam Hussein



Brutality/Violence/Savagery/Ferocity:
Also known as the modern day Hitler, Saddam was infamous for using chemical weapons in war against Iran, invading Kuwait in the Gulf War and destroying all its oil fields and of course for torturing and killing people on his human shredder.

Death: He was executed by hanging on the day of Eid-ul-Adha, on 30th Dec 2006.

7. Genghis Khan
Identity:
The founder and Great Khan (emperor) of the Mongol Empire

Genghis Khan

Genghis Khan


Brutality/Violence/Savagery/Ferocity: Genghis Khan, leader of the Mongol Empire, was infamous for his ruthless massacres of the defeated populations and he found much pleasure in other’s despair. The following quote which has been ascribed to him is enough to give us an idea of what a terror he must have been:

“Happiness lies in conquering one’s enemies, in driving them in front of oneself, in taking their property, in savoring their despair, in outraging their wives and daughters”.

Death: Supposedly killed by a princess.

6. Idi Amin Dada
Identity:
The military dictator and third President of Uganda from 1971 to 1979

Idi amin dada

Idi amin dada


Brutality/Violence/Savagery/Ferocity: His solution to erase tribalism in Uganda was simple, murder the tribes. Over the years, Ugandans would disappear in the thousands, their mutilated bodies washing up on the shores of Lake Victoria. Besides being a murderer, he was also a cannibal, something which he was actually proud of. His dictatorship, which lasted till 1979, claimed 100,000 to 300,000 lives for which he never showed any remorse.

Death: Kidney failure.

5. Pol Pot
Identity:
A Cambodian Maoist revolutionary who led the Khmer Rouge[3] from 1963 until his death in 1998. From 1963 to 1981.

Pol Pot

Pol Pot



Brutality/Violence/Savagery/Ferocity:
former leader of political party ‘Khmer Rouge’ ruled Cambodia as Prime minister from 1976-1979 and in these 3 years his government claimed up to 3 million deaths! Being a communist himself, he wanted a communist future for Cambodia, therefore Buddhist monks, Western-educated intellectuals, educated people in general, people who had contact with Western countries, people who appeared to be intelligent (for example, individuals with glasses), the crippled and lame, and ethnic minorities became victims of his terror. He had special killing fields set up for mass execution of these people. Many also died due to forced labor, starvation and disease.

Death: Allegedly committed suicide.

4. Ivan IV of Russia
Identity:
The first ruler of Russia to assume the title of Tsar in 1547.

Ivan IV

Ivan IV



Brutality/Violence/Savagery/Ferocity:
During his rule he built a wall around the city of Novgorod making its inhabitants prisoners in their own city. He did that because he thought that the chiefs of Novgorod were going to attack Poland. But his viciousness did not stop here, everyday between 500 to 1000 people were gathered from the city and were tortured and killed infront of him and his son. He was also responsible for the miscarriage of his daughter-in-law, whom he physically abused for dressing up immodestly, and the death of his son, whom he accidentally struck with a pointed staff during the argument that preceded after his daughter-in-law’s miscarriage.

Death: Poisoning.

3. Vlad Tepes
Identity:
Prince of Wallachia, Romania (1431–1476) and three-time Ruler of Wallachia, Romania, ruling mainly from 1456 to 1462.

Vlad tepes

Vlad tepes



Brutality/Violence/Savagery/Ferocity:
The famous vampire character ‘Dracula’ was inspired by this evil prince of Wallachia, Romania who found immense pleasure in torturing people. Even though he used all forms of torture like burning, boiling, cutting off the limbs, mutilating sexual organs, driving nails in head and skinning etc, his most popular method or you could say his favorite one was impalement which is why he is also known as ‘Vlad the Impaler’.

Death: Assassinated.

2. Adolf Hitler
Identity:
He was chancellor of Germany from 1933 to 1945 and dictator of Nazi Germany from 1934 to 1945

Adolf Hitler

Adolf Hitler


Brutality/Violence/Savagery/Ferocity: Leader of the Nazis, this German dictator was responsible for the Holocaust during the Second World War in which over 14 million people, including 6 million Jews were put to death through mass gassing, starvation and exhaustion and disease resulting from slave labor. Death squads were also formed to shoot Jews in masses. Besides the Jews, homosexuals, gypsies and hippies were also targeted during the Holocaust.

Death: Committed suicide by shooting himself while simultaneously biting into a cyanide capsule.

1. Josef Stalin
Identity: The Premier of the Soviet Union from 6 May 1941 to 5 March 1953 and also ‘General Secretary of the Communist Party of the Soviet Union’s Central Committee’ from 1922 until his death in 1953.

Joseph Stalin

Joseph Stalin


Brutality/Violence/Savagery/Ferocity: Believe it or not. Josef Stalin was actually worse than Hitler, whom until now we thought was the worst leader in history. Stalin was the General Secretary of the Central Committee of the Communist Party of the Soviet Union from 1922 until his death in 1953, during which Ukraine suffered from a widespread famine. This famine which was caused by political and administrative decision rather than by some economic crisis is considered to be an act of genocide on the part of the government. Moreover, he ordered the execution of anyone who was considered as the enemy of the state. Around 10 to 60 million people lost their lives during his rule.

Death: Either assassinated or had stroke.

Ferocity of ancient egyptian rulers

Ferocity of ancient egyptian rulers

Now, dear brothers and sisters, let’s study further and take lesson. The present day oppressive leaders and those who support them should know that punishment awaits for them in this earth and hereafter if they do not repent soon.

ALLAAH (SWT) has said in the Glorious Qur’aan:
“We will reserve the houses of the hereafter exclusively for those who do not seek self-glory in this life and do not cause oppression and corruption to spread. The final outcome belongs to those who fear (ALLAAH)” (Surah: Al-Qasas. Verse: 83).

Narrated Abu Huraira (R.A):
ALLAAH’s Apostle Muhammad (pbuh) said, “Whoever has oppressed another person concerning his reputation or anything else, he should beg him to forgive him before the Day of Resurrection when there will be no money (to compensate for wrong deeds), but if he has good deeds, those good deeds will be taken from him according to his oppression which he has done, and if he has no good deeds, the sins of the oppressed person will be loaded on him.” Volume 3, Book 43, Number 629: Sahih Bukhari.

ALLAAH (SWT) is saying in the Glorious Qur’aan:
“Has the story reached you of the hosts, Of Fir’aun (Pharaoh) and Thamûd? Nay! The disbelievers (persisted) in denying (Prophet Muhammad (Peace be upon him) and his Message of Islâmic Monotheism). And Allâh encompasses them from behind! (i.e. all their deeds are within His Knowledge, and He will requite them for their deed” (Surah:Al- Burooj. Verse: 17-20).

Scholar protesting the oppression of leaders

Scholar protesting the oppression of leaders

-End

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Leadership in Islam – Ibn Qayyim

In the Name of Allaah, Full of Mercy, Ever-Merciful to His (Believing) Servants

Dear Brothers and Sisters,

Assalamu A’laikum Wa Rahmatullahi Wa Baraqatuh. Below is an extract from a treatise named ‘Path to Guidance’. This is a book which the Shaikh, the Imaam, the ’Allaamah, the Shaikh of Islaam and the Muftee of the Muslims, Aboo ’Abdullaah Muhammad the son of Aboo Bakr – better known as Ibn Qayyim al-Jawziyyah – may Allaah the Exalted have mercy upon him, sent to one of his brothers. The extract given below is a crucial contemporary issue. Please read carefully:

Leadership is a need in Islam

Leadership is a need in Islam


LEADERSHIP COMES BY PATIENCE AND CERTAINTY

(26) And He, free from all imperfections, has informed us that this leadership is obtained by patience (sabr) and certainty (yaqeen) for He, the Exalted said:

“And We made from among them, leaders, giving guidance under Our Command, when they were patient and believed with certainty in Our Signs”. [Soorah as-Sajdah (32):24]

Therefore, it is by patience and certainty that leadership in the religion is obtained.

(27) It is said that it is .Patience (in keeping) away from the world (by being occupied in worship),. and it is said, .Patience in the face of trials,. and it is also said, .Patience in keeping away from the forbidden things.. .However, what is correct is that leadership is obtained by patience in all of this, patience in fulfilling the obligatory duties of Allaah, patience in avoiding His prohibitions and patience
over the decrees (of Allaah).

(28) Allaah put both patience and certainty together since they are both (the source of) the happiness of the servant. Losing them both makes him lose his happiness. The heart is invaded by the various calamities of desires and lusts (shahawaat) which are in opposition to the command of Allaah, and also by the calamities of doubts which are in opposition to His goodness.

(29) Therefore, by patience, the desires and lusts are repelled and with certainty, the doubts are repelled. The desire (shahwah) and the doubt (shubhah) are in opposition to the religion from every single aspect. None will be saved from the punishment of Allaah except the one who repelled his desires with patience and his doubts with his certainty.

(30) This is why Allaah, free from all imperfection, informed about the loss and ruin of the actions of the people of doubts, lusts and desires:

“Like those before you, they were mightier than you in power, and more abundant in wealth and children. They had enjoyed their portion awhile, so enjoy your portion awhile as those before you enjoyed their portion awhile …” [Soorah at-Taubah (9):69].

This enjoyment is their enjoyment of their share of lusts and desires, then He said:

“…And you indulged in play and pastime (and in telling lies against Allaah and His Messenger Muhammad) as they indulged in play and pastime…” [Soorah at-Taubah (9):69].

And this is arguing with falsehood about the religion of Allaah and it is the argument and fooling around of the people of doubts. Then He said:

“..Such are they whose deeds are in vain in this world and in the Hereafter. Such are they who are the losers”. [Soorah at- Taubah (9):69].

(31) So Allaah, free from all imperfections, attached the wastage and ruin of ones actions and loss with the following of desires, which is taking enjoyment from one’s share of desires, and with the following of doubts, which is arguing by falsehood.

Virtues of a Muslim Leader

Virtues of a Muslim Leader


LEADERSHIP IS ALSO BY CALLING TO ALLAAH WITH WHAT HE HAS COMMANDED

(32) Just as He, free from all imperfections, has linked leadership in the religion with patience and certainty, the aayah’ also contains two further principles:

(i) The first: Calling to Allaah and to the guidance of His creation.

(ii) The second: Guiding them with what He has commanded, upon the tongue of His Messenger, not what is demanded by their intellects, opinions, political manoeuvres, tastes and the blind-following of their predecessors, without any proof from Allaah. Because He said:

“… giving guidance under Our Command, when they were patient …” [Soorah as-Sajdah (32):24].

:The End

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